CUB 68762

GUY GOULARD, Umpire

The claimant worked for Maison du Homard from May 2 to September 18, 2004. She filed a benefit renewal claim that was established effective September 19, 2004. The Commission then determined that the claimant had resumed working for her employer from May 8 to 14, 2005, that she had then left her employment without just cause and that she had a reasonable alternative to doing so. Consequently, the Commission imposed an indefinite disqualification as of May 8, 2005. This decision gave rise to an overpayment of $1,390.00. The Commission also determined that the claimant had made false statements by not reporting that she had voluntarily left her employment. The Commission imposed a penalty in the amount of $695.00 and issued a notice of violation.

The claimant appealed from the Commission's decisions to the Board of Referees, which allowed her appeal in a unanimous decision on the issue of the imposition of a penalty and the issuance of a notice of violation, and in a majority decision on the issue of leaving without just cause. The Commission appealed to the Umpire from the Board of Referees' decision on the issue of voluntary leaving. The appeal was heard at Gaspé, Quebec, on July 24, 2007 with the claimant in attendance.

The only issue is whether the majority of the Board of Referees erred in deciding that the claimant had established just cause within the meaning of the Employment Insurance Actfor having left her employment.

On the Record of Employment, the employer indicated that the claimant had voluntarily left her employment on May 14, 2005. In Exhibit 7, the employer added that it had informed the claimant that it could not give her as many hours as it had in the previous year. The claimant then told the employer that she might be able to obtain another job where she could receive enough hours to become eligible for Employment Insurance benefits. The employer also stated that the claimant was not an exceptional employee and was never sure if she could make it to work because of problems with her car, which was old.

The claimant stated that her employer gave her only a few days of work here and there. It could not guarantee her that she would be able to accumulate the number of hours of insurable employment necessary to have a benefit period established and suggested that she find employment elsewhere. She added that her employer had told her that it would indicate "shortage of work" as the reason for her separation from employment but had in fact indicated that she had quit so as not to cause problems with the Employment Insurance Commission. She stated that she had left her employment while waiting for another job with Restaurant/Motel Fraser in Chandler. She had been waiting to start work with this employer in late June or early July 2005. She worked there from June 28 to September 24, 2005. The claimant added that it was after she had mentioned labour standards to the employer with respect to its refusing to let her take a break, that the employer had told her that it could not guarantee her the same work hours that it had given her in the past.

In Exhibit 8, the owner of Restaurant/Motel Fraser confirmed that his spouse had told the claimant that she could receive work in the summer but that no promises had been made or dates confirmed.

In her notice of appeal to the Board of Referees, the claimant repeated that her employer had warned her that it could not guarantee her enough hours of employment to have a benefit period established and had encouraged her to find employment elsewhere. She submitted that the employer had told her that it would indicate a shortage of work on her Record of Employment. The claimant trusted what the employer had told her and had approached someone at Restaurant/Motel Fraser to inquire about a job opportunity there. She was told that she could be hired in the summer.

The claimant attended the Board of Referees' hearing and repeated the reasons that she had previously given for leaving her employment. She added that because a cook had been hired, there were fewer hours for her. When a member of the Board asked her why she did not wait until she was able to start her new job at Motel Fraser before leaving the employment she had, the claimant responded that her employer had never called her back and had said that if she was concerned about it, it would provide her with a note explaining that there was a shortage of work. She also indicated that in 2003, car trouble had prevented her from getting to work just once.

The Board of Referees reviewed the evidence, and on the issue of the claimant's voluntary leaving, the majority of the Board of Referees allowed the claimant's appeal for the following reasons:

After hearing the appellant, we find her credible with respect to all the facts in the docket as well as when she appeared before the Board.

- Both the appellant and the employer confirmed that the shortage of work would not guarantee the appellant the number of hours required to qualify for employment insurance (Exhibit 7);
- The addition of a new head cook early in the season, when in previous seasons this position was held by the employer, adds a justification to the cause of shortage of work;
- The fact that she informed her employer that she was entitled to a break after five consecutive hours, under labour standards, may have damaged her chances of keeping her employment;
- Her car being supposedly too old to get to work, though untrue, does not appear to be a credible reason;
- It is credible that the employer would have given the appellant a note justifying the shortage of work because there was the possibility of another job for her.

In conclusion, and on the basis of the facts gathered, we believe that the appellant is credible and, in reference to section 29(c)(vi) and (xiii), a majority of the Board of Referees allows the appellant's appeal and dismisses that of the Commission.

The minority member dismissed the claimant's appeal because she had not established just cause within the meaning of the Act for having left her employment. To begin with, the member was of the opinion that the claimant could have continued working for her employer even though it had suggested that she look for work elsewhere. He was also of the opinion that the claimant did not have reasonable assurance of another employment in the near future since no date had been set for her to start the new job and there was no guarantee that she would begin working there in the near future. Although the minority member acknowledged that the employer had suggested to the claimant that she look for employment elsewhere, he did not consider the employer to have placed undue pressure on the claimant to leave her employment. Lastly, the minority member indicated that in his opinion the claimant had other reasonable alternatives to leaving her employment such as continuing to work for her employer in order to better assess the effects of a poor lobster season.

On appeal, the Commission submitted that the majority of the Board of Referees had erred in fact and in law in finding that the claimant had established just cause within the meaning of the Act for leaving her employment. The Commission argued that the decision of the minority member was well founded on the evidence and on the interpretation of section 29(c) of the Act, which is consistently interpreted in the case law. The Commission submitted that the evidence had shown that the claimant had other alternatives to leaving, under the circumstances.

Section 29(c) of the Employment Insurance Actreads as follows:

Just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:

(Emphasis added)

The Act requires that all of the claimant's circumstances be taken into account to determine whether the claimant established that he or she had just cause for leaving an employment. In CUB 57874, Stevenson J. made the following statement:

In determining whether a claimant had just cause to leave a job the Employment Insurance Act requires us to have regard to all the circumstances - including economic circumstances. Failure to consider and give sufficient weight to such circumstances is an error of law. I refer to my decisions in CUBS 35229, 46437 and 54416.

The majority of the Board had regard to all the claimant's circumstances. They stated, among other things, that the employer's remarks about the lack of a guarantee of the number of work hours required to have a benefit period established and its suggestion that the claimant look for work elsewhere were made after the claimant had raised the issue of labour standards when the employer had refused to let her take a break. The majority of the Board also pointed out and believed the claimant's testimony to the effect that the employer had allegedly told her that it would indicate a shortage of work as the reason for her separation from employment and that this was a credible reason given that a cook had been hired. In addition, the majority of the Board stressed that the spouse of the owner of Restaurant/Motel Fraser had told the claimant that she would have a job at the end of June;and this was confirmed by the hiring of the claimant.

In this case, the claimant found herself in a situation where she felt that her employer wanted her to leave after she had made a comment about labour standards. The employer had suggested that she leave and had said that it would indicate a shortage of work as the reason for her separation from employment. The claimant could certainly have believed that the employer was pressuring her to leave. She had also secured herself other employment, even though it would only begin in a few weeks.

The case law holds that the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. In Guay (A-1036-96), the Federal Court of Appeal stated the following on this issue:

In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.

The decisions in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03) also hold that an Umpire cannot substitute his or her opinion for that of a Board of Referees, unless the Umpire feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjardins J. made the following statement:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility, there was, moreover, significant evidence to support the conclusion of the majority.

In Le Centre de valorisation des produits marins de Tourelle Inc. (supra), Létourneau J. indicated that an Umpire's function is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

More recently, in Peace (supra), Sexton J. made the following statement:

In Budhai, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In Canada (Attorney General) v. Sacrey, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.

According to the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.

In the instant case, the majority decision of the Board was completely open to it on the record. The majority of the Board had regard to all the claimant's circumstances and determined that she had established just cause within the meaning of the Act for leaving her employment under the circumstances.

The Umpire does not have the jurisdiction to retry a case or to substitute his or her discretionary power for that of the Board. The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees did not respect a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Board, the Umpire must dismiss the appeal.

The Commission did not show that the majority of the Board of Referees made such an error. On the contrary, the decision given by the majority of the Board was completely open to it on the record and in the relevant statutory provisions as interpreted in the case law.

Therefore, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 31, 2007